Report Questions Legality Of Briefings on Surveillance

By SCOTT SHANE

Published: January 19, 2006

A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are ''inconsistent with the law.''

The analysis was requested by Representative Jane Harman, the ranking Democrat on the House Intelligence Committee, who said in a Jan. 4 letter to President Bush that she believed the briefings should be open to all the members of the House and Senate Intelligence Committees.

Instead, the briefings have been limited to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, the so-called Gang of Eight.

Since 2002, the security agency has intercepted the international phone calls and e-mail messages of some Americans and others in the United States who the agency believes are linked to Al Qaeda. The eavesdropping was authorized by an executive order signed by President Bush but without the court warrants usually required.

The Senate Judiciary Committee on Wednesday scheduled an open hearing on the eavesdropping program for Feb. 6. The hearing, titled ''Wartime executive power and the N.S.A.'s surveillance authority,'' is expected to include testimony from Attorney General Alberto R. Gonzales.

In an interview on Wednesday, Ms. Harman, of California, said she had been invited to another briefing on the program at the White House on Friday and had urged senior administration officials to open the session to the full committees.

She declined to name the officials, but a Congressional staff member said they were Andrew H. Card Jr., the White House chief of staff; and David S. Addington, Vice President Dick Cheney's chief of staff. Mr. Cheney's office oversees the briefings on the surveillance program.

Of the Congressional Research Service analysis, Ms. Harman said, ''It's a solid piece of work, and it confirms a view I've held for a long time.''

A White House spokesman, speaking on condition of anonymity because the program was classified, said, ''We continue to brief the appropriate members of Congress as we have been for the last several years.''

A spokesman for Representative Peter Hoekstra, chairman of the House Intelligence Committee, said Mr. Hoekstra was traveling and had not seen the report.

The spokesman, Jamal D. Ware, said that Mr. Hoekstra, a Michigan Republican, believed the briefings had been adequate for Congressional oversight but that he was open to expanding them.

''The chairman is taking it under consideration and does support some expansion of the number of Intelligence Committee members who are briefed,'' Mr. Ware said.

The Congressional Research Service memorandum, sent to the Intelligence Committee on Wednesday, explores the requirement in the National Security Act of 1947 that the committees be kept ''fully and currently informed'' of intelligence activities. It notes that the law specifically allows notification of ''covert actions'' to the Gang of Eight, but says the security agency's program does not appear to be a covert action program.

As a result, the memorandum says, limiting the briefings to just eight members of Congress ''would appear to be inconsistent with the law.''

The memorandum, written by Alfred Cumming, a national security specialist at the research service, does lay out several possible defenses for the administration's position. ''The executive branch may assert that the mere discussion of the N.S.A. program generally could expose certain intelligence sources and methods to disclosure,'' it says.

In a related action, the Electronic Privacy Information Center, an advocacy group in Washington, said it would file suit against the Justice Department for failing to release documents on the eavesdropping program that it had requested under the Freedom of Information Act. A department spokesman said the department gave an initial response to the center's request within three days of its receipt on Dec. 16, saying it had approved expedited handling for the request.

Photo: Representative Jane Harman of California, the ranking Democrat on the Intelligence Committee. (Photo by Yoni Brook/The New York Times)